In those circumstances, the Special Condition 36 interest is to be included in the deficiency recoverable under cl 9.3.1, which the defendant herself contends is the appropriate criterion for recovery against her. This sum will therefore be included in what is to be awarded to the plaintiffs.
(3) Costs of resale [$1,153.40]
22 These were not originally claimed, but they were claimed at the heel of the hunt. They are specifically within cl 9.3.1. The defendant did not deny liability, but claimed a deduction of $150 odd for a mortgage discharge fee. However, this sum seems to me a valid item of costs and I decline to deduct it.
(4) The lost auction and advertising fees [$15,106]
23 The criteria for the recovery of costs and expenses thrown away under cl 9.3.1 are, first, that they should be costs and expenses (rather than losses) and, secondly, that they should arise "out of the purchaser's non-compliance with this contract" or a notice under or relating to the contract and of resale or any attempted resale.
24 In my view, whilst an attempt could be made to characterise the wasted auction fees as a loss arising out of non-compliance with the contract, they cannot be characterised as costs and expenses arising out of non-compliance with the contract or a notice. They cannot therefore be recovered under cl 9.3.1. Although the plaintiffs did not originally claim the costs of the resale, they have now done so and that claim is dealt with in [22] above.
(5) Legal fees in relation to the aborted conveyance [$10,665.70]
25 This is the amount of a bill of costs presented by solicitors for work related to the contract and proceedings under it. I am of the view that, insofar as the fees are for work done in the course of the entry into and the carrying out of the contract, they cannot be characterised as work done arising out of the purchaser's non-compliance under the contract or any notice. However, it is clear that quite early the defendant threatened not to comply with the contract and I am of the view that the costs of advice concerning and actions arising out of these threats could be characterised as costs and expenses arising out of the purchaser's non-compliance. It seems to me therefore that there should be a determination in due course, which it is not appropriate for the Court to make as part of its resolution of the trial issues, of what part of the solicitor's bill of $10,665.70 falls within this category. Traditionally this would have been determined by the direction of an inquiry before the Master (now an Associate Judge), but one would hope that this matter could after delivery of this judgment be resolved by agreement or by a simpler procedure such as a reference to a referee or a determination by an agreed conveyancing expert appointed for the purpose.
(6) Extra rent [$4,615]
26 This claim was reduced to $4,615. This sum was made up as follows. No claim was made for rent payable during the original six month term of the lease, since that was entered into so that the plaintiffs could move out of the property to give vacant possession under the contract, which was still on foot on 24 June 2005, and not by reason of non-compliance with the contract. However, the plaintiffs' claim the rent paid during the holding over period from 24 December 2005 to 1 April 2006. They say that continuation of the letting during that period would have been unnecessary had the contract been complied with, because they would have been able by 24 December 2005 to have purchased a new house and moved into it. But they could not start looking for the new home until they had in hand the proceeds of sale of the property. The extra rent incurred should be regarded as a reasonable expense arising out of non-compliance with the contract and therefore recoverable under cl 9.3.1. The 13 weeks' rent amounts to $11,375. The claim as enunciated by the plaintiffs allows in the defendant's favour $520 per week (a total of $6,760) in respect of mortgage payments which the plaintiffs were no longer making during those 13 weeks. The balance claimed is $4,615. I find that that claim should be upheld.
(7) Extra removal fees [$4,184.36]
27 As with the original six months rent, which the plaintiffs do not claim (in my view correctly), I am unable to see how the extra removal fees arose out of the purchaser's non-compliance with the contract. Had the purchaser complied with the contract, the plaintiffs would have had to move out of the house to afford vacant possession. Indeed, the evidence shows that they entered into the lease of residential premises and moved out of the house for this very purpose while the contract was still on foot. In those circumstances, the removal expenses could hardly be characterised as arising out of the purchaser's non-compliance. Equally, the plaintiffs would have in any event had a second set of removal expenses from the rented accommodation to their new house when purchased. Had the contract been complied with, they would have had two sets of removal expenses. I cannot see that they can recover either set of removal expenses under cl 9.3.1 (or for that matter at common law).
(8) Interest
28 The plaintiffs claim interest on the various sums they are entitled to recover. The defendant resists the payment of interest, particularly upon the deficiency on resale, with or without the Special Condition 36 interest. The basis upon which they resist an award of interest is that if the plaintiffs are to be regarded as proceeding under cl 9.3.1, the only items which may be recovered are those specifically mentioned in cl 9.3.1, and that clause does not advert to interest under s 100 of the Civil Procedure Act 2005 ("the CPA").
29 In my view, this contention is misconceived. The interest sought is sought under s 100, not under cl 9.3.1. That section provides for the inclusion of interest in the amount for which judgment is given in "proceedings for the recovery of money (including any debt or damages or the value of any goods)". Whether it be a claim for damages in the general law or for the recovery of moneys under cl 9.3.1, the relevant claim must be a claim for the recovery of money within the meaning of s 100. The fact that interest is not specified as one of the items of the claim within the contractual provision matters not. The claim remains a claim for the recovery of money and the jurisdiction under s 100 is enlivened in relation to that claim. There is no reason why the Court ought not exercise that jurisdiction to calculate an appropriate amount of interest and include it in the judgment upon that claim. Nor is there any reason that I can perceive why the Court ought not do so. I propose to include interest in the amount that will be awarded. Interest will also be calculated in respect of other claims which are successful on an appropriate basis and included in the sum for which judgment is ultimately given.
30 The defendant contends that in any event interest should not be allowed on the item of $46,947.88 which has been described as Special Condition 36 interest. It is, of course, the law that in general terms interest on interest is not allowed: CPA s 100(3)(a); Degmam Pty Ltd (in liq) v Wright [1983] 2 NSWLR 601. However, this sum is not awarded to the plaintiff as interest calculated upon some other item of the claim. It is awarded as an amount which would have been payable on completion of the contract on the date of termination, if completion had occurred on that day. It is recovered as part of the deficiency on resale: see [21] above. Interest may be awarded where the interest recovered is really part of the damages: Bushwall Properties Ltd v Vortex Ltd [1975] 1 WLR 1649. In the circumstances, it is appropriate to award s 100 interest upon this element as well as upon the sum which represents the difference in actual price less the amount of the retained deposit when refunded.
31 As to the rate at which interest should be allowed, the plaintiffs claim that it should be allowed at the rate of 12 percent being the rate specified in Special Condition 36, rather than at the rates specified in Schedule 5 to the Uniform Civil Procedure Rules 2005 that usually apply. The 12 percent rate should undoubtedly apply to the interest under item (2) which is avowedly awarded under the contractual term. However, although there is some force in the plaintiffs' submission, particularly insofar as it relates to the amount awarded for the deficiency on resale, I do not see sufficient reason to deviate from the ordinary course in respect of any other interest awarded and all interest will be calculated at Schedule 5 rates.
Damages at common law
32 The only items on which the plaintiffs fail under cl 9.3.1 are the extra removal fees, the lost auction and advertising fees and the legal fees of $10,665.70, insofar as the latter relate to work on the failed first contract of sale as opposed to work relating to non-compliance with that contract.
33 So far as the extra removal fees are concerned, in my view these could not be recovered as damages at common law, as they lack causal connection with the breach of contract for the reasons already stated in relation to this claim as made under cl 9.3.1.
34 So far as the lost auction and advertising costs and legal costs of entering into the first contract are concerned, it may be that these would be recoverable at common law as consequential losses flowing from the breach of contract. Here, however, the question of election pursuant to the principles stated in [15] - [17] above arises. In this case, the question is in my view easily answered. In the particulars appended to par 12 of the statement of claim, the plaintiffs made their claim by reference to the loss occasioned to the plaintiffs on the resale of the property. They have thereafter continued to conduct the proceedings on the basis of a claim formulated in that way. They have made no submission for the recovery of common law damages calculated by reference to the difference between contract price and market value. Although it may be that the prompt resale of the property for $1,100,000 would provide evidence of market value, they have at no stage made any submission as to what the market value of the property was or formulated their case by reference to market value. In those circumstances, under the principles discussed above, they must be taken as having elected to pursue their body of rights under cl 9.3.1 and are not entitled to make any claim by reference to the body of rights provided for by cl 9.3.2. For that reason, they cannot recover the lost auction and advertising costs or costs of entering into the first contract under common law principles.
Conclusions
35 The conclusions I have come to as to what the plaintiffs may recover, subject to any final submissions as to calculations of figures, may be summarised in tabular form as follows:
No Claim Amount
1 Difference between contract price and resale price [$100,000] less deposit retained [$60,000] $40,000.00
2 Special Condition 36 interest from 1 July 2005 to 15 August 2005 when contract terminated $46,947.88
subject to this sum being justified by calculation
3 Costs of resale $1,153.40
4 Legal fees in relation to non-compliance with contract but not in relation to entering into or carrying out of contract $10,665.70
to be dissected to provide this figure
5 Extra rent paid $4,615.00